CPR 26.9(10)(e) | Wrongful Interference With Goods Against Police Mandates Multi-Track Allocation | Part 36 Acceptance Does Not Oust Fixed Costs

Background

The case concerned a claim brought by the Executors of the Estate of Kenneth Collins against the Chief Constable of Thames Valley Police. In July 2015, police officers arrested Mr Collins and, during a search of his property, seized thirteen guns and ammunition [§2]. He was later convicted of related offences in February 2017, and a destruction order was made for some of the items [§3]. Following revocation of his shotgun certificate, requests for the return of the remaining guns to his partner were refused. On 6 November 2018, the police informed Mr Collins that the guns had been destroyed [§4].

Mr Collins instructed Brabners LLP to pursue a claim in negligence and/or wrongful interference with goods, with losses quantified at approximately £228,000. A Letter of Claim was sent on 12 July 2019 [§5]. The Defendant’s response on 28 October 2020 indicated it could identify no defence to liability in principle [§5]. Mr Collins died on 15 April 2022, and the claim was continued by his estate [§6]. Both parties obtained expert valuation evidence.

On 11 January 2023, the Claimant made a Part 36 offer of £50,000 [§7]. On 17 January 2023, the Defendant made a Part 36 offer of £32,500 using Form N242A, which included a term that acceptance within 21 days would render the Defendant liable for the Claimant’s costs in accordance with CPR 36.13 [§8]. The Claimant accepted this offer on 1 February 2023, within the relevant period.

Costs were not agreed. On 31 December 2024, the Claimant issued Part 8 costs-only proceedings [§9]. The Defendant contested the making of an order for assessed costs, leading to the hearing before Costs Judge Whalan.

Costs Issues Before the Court

The sole issue for determination was whether the Claimant was entitled to an order for costs to be assessed on the standard basis, or whether their recovery was limited to fixed recoverable costs under the extended regime introduced by the Civil Procedure (Amendment No. 2) Rules 2023. This turned on three alternative questions [§10]:

1. 1. Whether FRCs were excluded because the substantive claim fell within the scope of CPR 26.9(10)(e), requiring mandatory allocation to the multi-track.
   2. Whether FRCs did not apply because the claim was a non-personal injury claim that settled without proceedings being issued, per the transitional provisions of the 2023 Rules.
   3. Whether FRCs were ousted by the express terms of the Part 36 settlement agreed in February 2023.

The Parties’ Positions

The Claimant’s Position: Counsel, Mr Waszak, submitted that FRCs did not apply for three reasons. First, the claim fell within CPR 26.9(10)(e)(i) as a “claim against the police which includes a claim for… an intentional or reckless tort” [§13]. The Letter of Claim referenced “wrongful interference with goods”, which encompassed the intentional torts of conversion and trespass to chattels [§14-16]. The destruction of the guns was, by nature, a deliberate act [§17]. This would have mandated multi-track allocation, taking the claim outside the FRC regimes.

Second, on the transitional provisions, Mr Waszak argued that FRCs only applied to non-personal injury claims where substantive “proceedings are issued” on or after 1 October 2023 [§21]. The phrase “proceedings” referred to the substantive claim, not subsequent Part 8 costs proceedings. As the substantive claim settled pre-issue, it was not caught. He cited a Q&A supplement to the White Book in support [§24] and invoked the presumption against retrospective legislation, arguing it would be “manifestly unjust” and “absurd” to apply FRCs retrospectively to a claim conducted under a different costs regime [§26].

Third, he argued that the Part 36 agreement itself expressly ousted FRCs. The Defendant’s offer stated costs would be payable “in accordance with rule 36.13”, which provides for assessment on the standard basis. This constituted an express agreement that costs would not be fixed, per CPR 45.1(3) [§35].

The Defendant’s Position: Counsel, Mr Hogan, submitted that FRCs applied. On the first issue, he contended the claim was, in legal and factual reality, solely in negligence. The Letter of Claim’s language was “redolent of negligence” and contained no elaboration on intentional torts [§18]. The Defendant’s admission of liability was based on negligence.

On the transitional provisions, Mr Hogan argued that the word “claim” in the rules included Part 8 costs-only proceedings. A “claim” remained in being until all elements, including costs, were concluded [§28]. Therefore, issuing costs proceedings after 1 October 2023 triggered the FRC regime for all costs incurred. He cited the county court decisions in Asmat Bi v Tesco Underwriting Ltd [§32] and Bek v Simsek [§33] which reached this conclusion. He also noted that procedural changes are not subject to the rule against retrospectivity [§30].

On the third issue, he submitted that acceptance of a Part 36 offer did not amount to “contracting out”. It merely conferred an entitlement to costs determined by the rules as a whole, which included the potential for FRCs [§36]. Part 36 is a procedural code, not a contractual agreement to oust other rules.

The Court’s Decision

Costs Judge Whalan held that the Claimant was entitled to an order for costs to be assessed on the standard basis.

On Issue 1 (CPR 26.9(10)(e)): The court found that the substantive claim did fall within CPR 26.9(10)(e)(i). The provision required only that the claim “included” a claim for an intentional tort — the provisions were “not exclusive but inclusive” [§19]. The reference to “wrongful interference with goods” in the Letter of Claim “sensibly and inevitably” suggested an alternative claim in conversion and/or trespass to chattels. The destruction of the firearms was “self-evidently the consequence of an intentional act” on the part of the Defendant [§19]. Therefore, the claim would have been mandatorily allocated to the multi-track, placing it outside the scope of FRCs under CPR 45. This finding was determinative in the Claimant’s favour.

On Issue 2 (Transitional Provisions): The court concluded that, had Issue 1 been decided differently, FRCs would have applied by virtue of the transitional provisions [§34]. It rejected the Claimant’s narrow interpretation. The court held that “claim” in the 2023 Rules included Part 8 costs-only proceedings issued to obtain a costs order. There was a single, continuing claim until all elements were concluded. No material distinction should be drawn between the substantive claim and costs-only proceedings. The changes were procedural and not subject to the rule against retrospectivity. The court found the scheme created a “bright line” demarcation and noted the Claimant had eight months to issue costs proceedings before the 1 October 2023 commencement date. It found the county court decisions of Asmat Bi and Bek “reassuring”, though not binding. The court expressly declined to place any reliance on the CPRC Minutes of 3 November 2023 [§34].

On Issue 3 (Contracting Out via Part 36): The court rejected the argument that the Part 36 agreement ousted FRCs [§37]. Offer and acceptance under Part 36 invoked a procedural, not a contractual, process. The entitlement to costs under CPR 36.13 was expressly subject to the proviso “Except where the recoverable costs are fixed by these Rules”. Therefore, it could not be construed as an agreement that costs would not be fixed if the Rules otherwise provided for FRCs.

Implications for Costs Practice

This decision has two significant implications for practitioners.

First, it establishes that claims against the police for wrongful interference with goods — even where framed primarily in negligence — will include an element of intentional tort (conversion or trespass to chattels) sufficient to engage CPR 26.9(10)(e)(i). Such claims must be allocated to the multi-track and are therefore excluded from the FRC regime regardless of value. Practitioners handling claims against the police should carefully consider whether any intentional tort element is present, as this provides an escape route from fixed costs.

Second, the court’s analysis of the transitional provisions is strictly obiter — the claim having already been excluded from FRCs on the intentional tort ground — but it represents the first SCCO-level endorsement of the approach taken by the county courts in Asmat Bi and Bek v Simsek, and is therefore of considerable practical significance. Notably, the court reached this conclusion on the proper construction of section 2(1) of the Civil Procedure (Amendment No. 2) Rules 2023 without placing any reliance on the CPRC Minutes of 3 November 2023, which practitioners had previously been citing as the primary authority for the position that Part 8 costs-only proceedings constitute “proceedings” for the purposes of those transitional provisions. The fact that the SCCO arrived at the same result through independent statutory analysis makes the reasoning considerably more robust. For any legacy non-PI claims that settled pre-issue before October 2023 but where Part 8 costs-only proceedings were issued after that date, this confirms that FRCs will apply. Practitioners with such cases still in the pipeline should take note.

Third, the court’s finding that acceptance of a Part 36 offer does not constitute contracting out of FRCs under CPR 45.1(3) is also technically obiter, but has implications well beyond police claims. The judgment confirms that Part 36 is a self-contained procedural code, and that the entitlement to costs under CPR 36.13 is expressly subject to the proviso “Except where the recoverable costs are fixed by these Rules.” Practitioners relying on Part 36 settlements to escape FRCs will need to seek express contractual language — a standard Part 36 acceptance, on its own, will not suffice.

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